Judge curt as Blacklock's trial wraps

Justice Barnes presses lawyers to focus in paywall case

A Federal Court case in which a start-up news outlet is suing the federal Department of Finance for copyright infringement wrapped up Friday with the presiding judge intervening numerous times to push back against both lawyers’ closing arguments.

Justice Robert Barnes will decide whether a senior staffer in Finance Canada had reasonable concern to distribute two paywall-protected articles published by Blacklock’s Reporter, a subscription-based political news company, to five of his colleagues and is as a result protected by fair dealing, a user’s right to access copyrighted material for purposes such as research, education, review, and criticism.

The case’s narrow focus on what constitutes fair dealing in the context of paywall-protected content appeared to be somewhat of a challenge throughout the five-day trial for both the plaintiff’s and defendant’s lawyers, whose arguments relied heavily on evidence not directly related to the incident involving the Department of Finance. Justice Barnes interjected multiple times during the witness testimonies and closing arguments to ask counsel to stay on course and present questions and evidence relevant to fair dealing.

Blacklock’s Reporter, which launched in 2012, filed the lawsuit against the government in 2014. Managing editor Tom Korski and publisher Holly Doan are claiming $17,816 in damages, an amount equivalent to the rate Doan provided Finance Canada in September 2013 for a bulk subscription of 700 users. The department did not purchase the bulk license.

Blacklock’s learned about the distribution through an access to information request, which revealed that in October 2013, senior chief of trade and tariff policy Patrick Halley received two Blacklock’s articles from a sugar lobbyist who had a subscription to the website. Halley told the court he sent the first article to other finance staffers because he was concerned the story contained inaccuracies and wanted to see whether the situation required follow-up or clarification.

The online news outlet has filed over a dozen lawsuits over alleged copyright infringement against other federal government departments and agencies in both the Federal and Ontario Superior courts. Blacklock’s has also invoiced other government branches in the past, including Agriculture Canada and the Privy Council Office — both of whom paid Blacklock’s $14,000 and $12,000, respectively.

An Ontario small claims court has also awarded the news company $13,470 in a copyright case against the Canadian Vintner’s Association.

The trial’s focus shifted predominantly to the question and scope of fair dealing on the trial’s opening day. Justice Barnes threw out the plaintiff’s attempt to plead punitive damages and section 41 of the Copyright Act because they were not pleaded in the original statement of claim. This meant the potential protection offered to Blacklock’s paywall through section 41 — which the Harper government added through the 2012 Copyright Modernization Act — would not be tested in court.

In his closing arguments, Blacklock’s lawyer Yavar Hameed argued that Halley’s distribution of the articles was “certainly not” for personal research or public criticism purposes — and the onus is on the government to have a policy or system in place to ensure proper use of copyrighted material.

Justice Barnes suggested to Hameed that he disagreed with the argument, saying investigation is “surely incidental to research” and it would be difficult to demand that every government official check the source of every article that lands in an inbox.

He also suggested that Finance Canada’s distribution “may be the consequence of a poorly crafted set of terms and conditions” that “could be tightened.” Justice Barnes said the language of the news outlet’s terms of use left him wondering whether the rights given to a Blacklock’s subscriber — which allow reproduction, duplication and distribution of Blacklock’s content for “personal, non-commercial use” — are also awarded automatically to anyone who receives that content from a subscriber.

In his closing arguments, defence lawyer Alex Kaufman pulled on that thread, questioning why Blacklock’s has not changed the terms and conditions on its website since June 2013 if Korski and Doan were truly interested in “deterring copyright infringement.”

Kaufman argued the evidence shows Halley should be protected by fair dealing provisions because the Blacklock’s articles in question concerned trade policy and Halley was concerned the piece contained inaccuracies.

Kaufman also urged Justice Barnes to consider an argument first presented in the statement of defence, which states that Blacklock’s “employs a strategy of requesting information from government departments,” calling for quotes and then publishing online articles — some of which he said are “incorrect or misleading” — about the department or agency’s activities, in order to entice the institutions to subscribe.

Justice Barnes argued in return that it would be difficult for him to establish a “broad pattern” of behaviour without all the evidence from other cases, and that it was a stretch for the defence to argue that Blacklock’s spins stories to bait government departments into distributing their articles.

For more background and information on the court case, check out iPolitics’s Wednesday and Thursday coverage of the trial.